New South Wales Court of Criminal Appeal CITATION : REGINA v ISRAIL [2002] NSWCCA 255 FILE NUMBER(S) : CCA 60219/02 HEARING DATE(S) : 19 June 2002 JUDGMENT DATE : 19 June 2002 PARTIES : Regina Mohammed Israil JUDGMENT OF : Spigelman CJ at 1, 33; Simpson J at 31; Blanch AJ at 32 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/0207 LOWER COURT JUDICIAL Tupman DCJ OFFICER : COUNSEL : G I O Rowling (Crown) G D Wendler (Respondent) SOLICITORS : S E O'Connor (Crown) Van Houten Solicitors (Respondent) CATCHWORDS : CRIMINAL LAW - Crown appeal against leniency of sentence - armed robbery - where blood-filled syringe produced - CRIMINAL LAW - Crown appeal against leniency of sentence - armed robbery - consideration of mental illness of offender. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Alexander (2000) 118 A Crim R 350 R v Fahda [1999] NSWCCA 267 R v Fernando [2002] NSWCCA 28 R v Harb [2001] NSWCCA 249 R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Jiminez [1999] NSWCCA 7 R v Kyroglou and Tsoukatos [1999] NSWCCA 106 R v Lauritsen (2000) 114 A Crim R 333 R v Pavlov [2001] NSWCCA 13 R v Tsiaras [1996] 1 VR 398 R v Zamagias [2002] NSWCCA 17 DECISION : Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60219/02 SPIGELMAN CJ SIMPSON J BLANCH J Wednesday 19 June 2002 REGINA v Mohammed ISRAIL Judgment 1 SPIGELMAN CJ: This is a Crown appeal against the alleged inadequacy of a sentence imposed by her Honour Tupman DCJ. The Respondent pleaded guilty to one count of robbery armed with an offensive weapon, namely a blood-filled syringe, contrary to s97(1) of the Crimes Act 1900, and a second count of attempted armed robbery with an offensive weapon, namely a mock rifle, contrary to s344A of the Crimes Act 1900. Two additional charges were asked to be taken into account on a Form 1, namely, demanding of money with menaces and another armed robbery. 2 The relevant events occurred over a short period of time. The first count on the indictment, being the armed robbery, occurred at about 12.30pm on 4 February 2001. The Respondent entered a shop in Ashbury operated by Meiya Gao and her husband Ping Li. The Respondent produced a syringe filled with blood and demanded money. Ms Gao threw an envelope containing $150 at the Respondent and the Respondent left with the money. After the offence, Ms Gao placed a length of aluminium rod behind the counter of the shop. 3 The first offence to be taken into account on the Form 1 took place on the following day, that is 5 February 2001. The Respondent again entered the shop of Ms Gao and demanded money. She hit the counter several times with the aluminium rod and refused to hand over money to the Respondent, who left the shop. 4 The second offence on the indictment, namely the attempted armed robbery, occurred on 12 February 2001. While a co-offender stood by the doorway, the Respondent again entered the shop of Ms Gao and Mr Li carrying what appeared to be a rifle, which was in fact a length of pipe and timber, covered by a piece of cloth or jacket. He demanded money from Mr Li. Ms Gao recognised the Respondent and, although she believed the Respondent was armed, she formed the belief that the weapon could not be fired. She pushed passed Mr Li and threw a stool at the Respondent. When the Respondent attempted to reach into the till, she struck the counter with the aluminium rod several times. The Respondent and the co-offender left the shop without taking any property. 5 The second offence on the Form 1 took place about thirty minutes after the above incident on 12 February 2001. The Respondent entered a shop at Croydon operated by Jie Zheng. The Respondent was carrying an object that he said was a gun, demanded money and cigarettes from Ms Zheng. The victim, believing it to be a gun, handed the Respondent $200 and some cigarettes. The Respondent left in a car identified by witnesses. It belonged to the Respondent's parents. On 13 February 2001, police officers arrested the Respondent and co-offender. The Respondent admitted his part in the offences of 12 February and said that he was attempting to obtain money for the purpose of acquiring drugs. His recollection of the events of 4 and 5 February was vague. 6 Of significance when her Honour came to sentence the Respondent, was the fact that he had spent about seven months in custody. When he was arrested on 13 February 2001, he remained in custody, bail refused. There was considerable delay in bringing him to trial, occasioned in large measure by the issue of his fitness to plead. In the event, he remained in custody until 6 October 2001, when bail was granted in the District Court on strict terms, including the offender attending for psychiatric treatment. 7 As soon as the issue of fitness to plead had been resolved, the Respondent indicated that he would be pleading guilty. 8 In her remarks on sentence, Tupman DCJ referred to the seriousness of the offences and to the fact that the offences carried maximum penalties of twenty years and ten years respectively. She noted that the victims of the four offences were in vulnerable positions as shopkeepers of small shops. She noted that although there were threats involved in the production of weapons, there was no actual violence involved. Her Honour did not, however, refer to the particular sense of horror occasioned by production of a blood-filled syringe (see for example R v Kyroglou and Tsoukatos [1999] NSWCCA 106 at 88 per Simpson J, and see also R v Fernando [2002] NSWCCA 28 at 17 and 72). Her Honour referred to R v Henry (1999) 46 NSWLR 346 and identified it as a "useful starting point" for determination of the appropriate penalty. Her Honour emphasised one particularly significant factor for the present case, the serious mental illness suffered by the Respondent. 9 Her Honour outlined the personal history and family background of the Respondent. She noted aspects of delusional conduct when he was very young and the increased abnormality of his behaviour from the age of sixteen. From that age he experimented with drugs including marijuana, LSD, amphetamines and eventually cocaine, ecstasy and heroin. At the time when he committed the offences in February 2001, he was using heroin and cocaine everyday. Tupman DCJ made the following findings: "In about the four year period before these offences were committed, he had started to develop serious and noticeable psychotic symptoms, including auditory hallucinations in which he heard people telling him to do bad things. He started to laugh and talk to himself and draw what are described as hideous pictures. Just before he committed these offences he had abruptly left the home in which he lived with his parents and had stolen his mother's car. They had reported him as missing to police but did not discover his whereabouts until ultimately they were informed that he had been arrested and charged in relation to these offences. The offender had had frequent contact with Mental Health Services and several admissions to psychiatric hospitals before his arrest on this occasion. About four years ago he was diagnosed as suffering from schizophrenia during one of these episodes. … He has in the past been admitted to the McKinnon Ward at Rozelle Hospital for drug related problems and his psychosis, and has been committed to a locked up ward because of attempts to escape from the psychiatric hospital. After he was arrested in relation to these offences and was in custody in April 2001 and in circumstances where, I accept, he was not at that stage actually using illicit drugs, he was exhibiting floridly psychotic symptoms to psychiatric treaters within the Corrective Services Department. He was described as delusional and thought disordered at that stage. I accept the opinion of Dr Teoh, the psychiatrist, that, at the time he committed these offences, the offender was grossly thought disordered, incoherent and disorganised. I accept that his mental condition played a significant part in his having committed these offences in that his judgment was severely affected because of it." 10 Her Honour went on to note the psychiatric treatment he received, particularly since his release on bail. Her Honour also accepted that he was suffering from clinical depression at the time he was released on bail. Tupman DCJ concluded: "I accept that the offender suffers from a mental illness, namely at the least, substance induced psychosis and mood disorder. I accept that it is also likely that he suffers an underlying psychotic disorder, either schizophrenia or bi-polar mood disorder which had started to emerge before he commenced abusing illicit drugs and which was in evidence to an extent while he was in gaol not using drugs in April 2001. Since he has been released on bail and has been following the intensive medical treatment organised for him by his parents, his mood has stabilised, he is no longer exhibiting psychotic symptoms, he has developed insight into his mental illness and its connection with his commission of these offences and I accept that he is motivated to keep both his mental illness and his use of illicit drugs under control. He is undertaking meaningful employment, is living with his parents in the community and appears to be contributing as a useful member of the community. He is making good progress in relation to his ongoing drug and alcohol counselling. The offender has the benefit of a supportive family and his rehabilitation will be assisted by that." 11 Her Honour concluded that the Respondent's prospects of rehabilitation were good, provided that his treatment remains in place. She noted that although such treatment had failed in the past, on this occasion it was more intensive in nature and his parents had taken over the supervision of the treatment to a significant extent. 12 Her Honour noted that the co-offender was sentenced for the two offences in which he was involved on 12 February. After pleading guilty, the co-offender received a sentence of three years and four months, with a non-parole period of twenty-two months. Her Honour referred to the factors differentiating the two cases on the issue of parity. She noted the less serious nature of some aspects of the co-offender's conduct, but indicated that the major differentiation between the two was the Respondent's "very significant and serious mental illness at the time he committed these offences and the large part that it played in his commission of them". Upon that basis his position was to be assessed quite differently from that of his co-offender, particularly, her Honour said, because the issue of general deterrence has to be viewed differently. 13 Her Honour referred again to the Henry guideline of four to five years and indicated that in her view that level was too high in the circumstances of this case by reason of the mental illness of the Respondent. Her Honour identified as a starting point a term of imprisonment of three years as appropriate in the absence of an early plea of guilty. She noted the Henry guideline had taken into account a plea of limited significance. She identified the plea in this case as occurring at the earliest opportunity, entitling the Respondent to a discount of twenty-five percent. On that basis, she reduced the tentative sentence of three years by six months. She then noted that the prisoner had already served six months and three weeks in custody and, accordingly, determined a term of imprisonment of two years, taking into account the time he had actually served in custody. This was the sentence she imposed on each of the two offences. 14 Her Honour then concluded: "I propose to suspend the whole of those terms of imprisonment in relation to each charge to take into account what I consider to be the remarkable rehabilitation displayed by the prisoner since his release on bail on 6 September 2001. It seems to me that his prospects of rehabilitation and the benefit that flows to the community can only be properly affected by his being available to continue in the community the intensive psychiatric and psychological treatment that he has undertaken since his release on bail on 6 September 2001. If that course is to continue, I consider that his prospects of rehabilitation are excellent and the community's wider interests are best served by having him in the community, drug free and with his mental illness under control and thus, in those circumstances, significantly less likely to commit any further offences." 15 Her Honour suspended the sentence upon the Respondent entering a bond on certain nominated conditions. 16 Her Honour had earlier rejected the submission that it would be appropriate in this case to impose a sentence, subject to an order for home detention. She rejected that course because the sentence she believed was appropriate was in excess of eighteen months and, on that basis, an order that the sentence be served by way of home detention was not available under s7 of the Crimes (Sentencing Procedure) Act (1999). A sentence of imprisonment may only be suspended pursuant to s12 of that Act, if it is for a term of not more than two years. That is precisely the term that her Honour imposed. 17 In submissions to this Court, the Crown asserted that the sentence was manifestly inadequate. It submitted that some aspects of the conduct in the present case indicated a higher level of seriousness than the matters considered to constitute a typical case referred to in Henry: the Respondent at twenty-six was not a young offender and the blood-filled syringe was an aggravating circumstance. These are pertinent elements which is why the Henry starting point was expressed as a range. Other elements are, however, low in the scale, for example the limited amount of fear induced in the victims. In my opinion, her Honour was entitled to adopt the Henry guide as a starting point. 18 Her Honour was entitled to take into account the mental illness from which the Respondent suffered. The Crown accepted that her Honour was entitled to give less weight to the question of general deterrence, by reason of his condition. The Crown submission was that her Honour had given this consideration excessive weight by reducing the starting point to three years. The Crown submitted that a period of imprisonment of four to five years was the appropriate sentence on the facts of this case. It submitted that the excessive weight her Honour gave to the subjective considerations, including the prospects of rehabilitation, led to inadequate weight being given to the objective circumstances of the case. 19 As I said in Henry at [169]: "Aggravating and mitigating factors will justify a sentence below or above the range, as this Court's prior decisions indicate. The narrow range is a starting point." This is how her Honour approached the issues. She was, in my opinion, entitled to do so. 20 There can be no doubt that the requirement of general deterrence is a significant consideration in sentencing for the offence of armed robbery. There is a long-standing body of case law in this Court to the effect that a non-custodial sentence for this offence can only be imposed in exceptional circumstances. However, this Court has upheld findings of that character by trial judges. (See the cases considered in Henry supra at [113]-[119].) 21 The significance of mental illness of an offender in the sentencing exercised has long been accepted. The relevant authorities have been reviewed in this Court, the Victorian Court of Appeal and the Western Australian Full Court. See R v Fahda [1999] NSWCCA 267 at [40]-[48] per Simpson J; R v Harb [2001] NSWCCA 249 at [35]-[45] per Smart AJ; see also R v Lauritsen (2000) 114 A Crim R 333, esp [43]-[51] per Malcolm CJ; R v Tsiaras [1996] 1 VR 398 at 400; see also Potas, Sentencing Manual: Law Principles and Practice in New South Wales 2001 at 285-286; Fox and Freiberg, Sentencing State and Federal Law in Victoria (2nd ed), 1999 at 293-294. 22 In the present case, the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion. 23 To the extent that mental illness explains the offence – as her Honour found to be the position in the present case – then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put it in Henry, supra, at [254]: "… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing." 24 I agree with the observations of Malcolm CJ in Lauritsen at [48]: "… mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence." 25 Furthermore, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have because, as the Victorian Court of Appeal put it: "… specific deterrence may be more difficult to achieve and is often not worth pursuing as such." ( Tsiaras, supra, at 400) 26 Finally, a custodial sentence may weigh more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served. (See Tsiaras, supra, at 400). However in Lauritsen at [51], Malcolm CJ noted that this factor, identified by the Victorian Court of Appeal in Tsiaras, may not represent the law in Western Australia. It is unnecessary to determine whether this is the law in New South Wales. It appears to have been regarded as material in this Court in R v Jiminez [1999] NSWCCA 7 at [25]. I see no reason why this would not be so, but the matter was not fully argued. 27 Difficulties arise where there is an element of congruence of drug addiction and mental illness, in separating the effect of mental illness, see e.g. R v Alexander (2000) 118 A Crim R 350, esp at [41]-[45]; R v Pavlov [2001] NSWCCA 13 at [46]-[47]. 28 Her Honour made a number of findings of fact in this regard that I have set out above. She identified the mental illness as a relevant factor, both in terms of culpability and also in terms of rehabilitation. These findings were, in my opinion, open to her Honour. The mental illness involved in the present case was of a particularly high order and gave rise to issues of culpability, personal deterrence and general deterrence, as well as rehabilitation. In these circumstances, in my opinion, it was open to her Honour to conclude that a term of imprisonment of two years was appropriate. 29 Her Honour suspended the sentence on the basis of the significance of rehabilitation in the context of the Respondent's mental illness. The Crown's primary submission on this appeal was that the period of two years was manifestly inadequate. If that was so, then suspension would not have been an option for her Honour. The Crown did not make any substantive submission suggesting that, if two years were an appropriate sentence, then suspension was, in all circumstances, inappropriate. This is not a case in which anything appears on the face of the record which suggests that her Honour chose the period of two years by reason of a determination that the offender should not be returned to full-time custody (cf R v Zamagias [2002] NSWCCA 17 at [35]-[36]). 30 In my opinion, her Honour's sentence was within the range of permissible exercise of discretion. The appeal should be dismissed. 31 SIMPSON J: I agree. 32 BLANCH J: I also agree. 33 SPIGELMAN CJ: The order of the Court is the appeal be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.